Federal Judges, Pro Se Litigants

The Backstory Behind Judge Richard Posner's Retirement

Judge Posner had some very specific reasons for his surprise retirement from the bench.

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(Photo by Chensiyuan via Wikimedia Commons.)

In May, when I had lunch with Judge Richard Posner and his clerks in Chicago, the esteemed jurist was in fine form, as enjoyable a conversationalist as ever.

In July — after he made controversial comments about aging federal judges, including a call for a mandatory retirement age of 80 — I asked him whether he’d apply that rule to himself. He kept his options open, telling me, “It will depend on how I feel [when I turn 80], both in terms of physical and particularly mental health and in terms of interest in the job.”

So like much of the legal world, I was taken by surprise when Judge Posner, currently 78, announced his retirement from the Seventh Circuit. He announced the news right before Labor Day weekend, and it took effect immediately.

And it’s a total retirement, not the usual move to senior status (a sort of quasi-retirement for federal judges), as I learned when we traded emails earlier this week. I wrote:

Hi Dick. Congratulations on your retirement — major news in the legal world, of course!

I haven’t been able to glean this from what I’ve read so far (although I haven’t read everything on the news, having just returned from vacation), but I was wondering: will you be taking senior status and still hearing cases, or are you departing from the Seventh Circuit completely?

He responded:

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Nice to hear from you, David. And I’m not taking senior status; my departure is total. It has to do with fact that I don’t think the court is treating the pro se appellants fairly, and none of the other judges agrees with me (or rather, they don’t like the pro se’s and don’t want to do anything with them, with occasional exceptions only).

I wasn’t sure if Judge Posner’s comments on pro se litigants were fair game for public discussion — but now they are, thanks to this Chicago Daily Law Bulletin piece:

[Judge Posner] intended to stay on the Chicago-based 7th Circuit until he turned 80… [b]ut “difficulty” with his colleague… moved up that date.

“I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake,” Posner wrote.

About 55 percent to 60 percent of the litigants who file appeals with the 7th Circuit represent themselves without lawyers. Very few pro se litigants are provided the opportunity to argue their cases in court. The 7th Circuit rules on most of those cases based on the briefs.

Posner has long been concerned about the plight of pro se litigants. Back in 2015, for example, he benchslapped a trial judge for mistreating a pro se plaintiff.

If you’re interested in learning more about Judge Posner’s problems with the Seventh Circuit’s treatment of pro se litigants, stay tuned:

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Posner wrote that he has a book coming out soon that explains his views on the topic — as well as the views of his former colleagues — “in considerable detail.”

Now that should be a juicy read! Judge Posner is famously candid, so don’t expect him to go easy on ex-colleagues he disagrees with.

I followed up with Judge Posner and asked how his stepping down would advance the cause of pro se litigants at the Seventh Circuit. Wouldn’t it be better for him to remain on the court and continue to advocate for their improved treatment?

Alas, it’s a lost cause, in his view: “I had zero support from the other judges; I was a voice crying in the wilderness.”

I also asked Posner whether he felt, in light of his comments about superannuated federal judges, whether he himself has been affected negatively by aging. He replied, in Posnerian fashion, “I think there should be compulsory retirement for all federal judges and Justices at age 80; I am as yet a mere child of 78.5.”

Judge Posner, you will be missed. I don’t know that I’d want a judiciary full of Richard Posners, but it sure was great to have one.

(Disclosure/shameless plug: I’m not an objective observer when it comes to Judge Posner. We’ve been friendly for years — dating back to my Underneath Their Robes days, when I asked him out on a date — and he was kind enough to blurb my book, Supreme Ambitions, when it came out a few years ago.)

Earlier:

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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